ILNews

Bell/Gaerte: 3 things to know about ethical advocacy in closing argument

James J. Bell , K. Michael Gaerte
July 30, 2014
Keywords
Back to TopCommentsE-mailPrintBookmark and Share

Bell Gaerte 3 thingsRecently, several published decisions have found attorneys to have engaged in improper advocacy. Most of these decisions have been criminal cases in which prosecutors were found to have engaged in a series of impermissible arguments. In addition, there was one recent disciplinary decision that found an ethical violation when the attorney made unsupported statements in his closing argument. Here are three things to know about ethical advocacy in closing argument.

1. Rule of thumb: Stick to the record.

If you are in the heat of trial and can’t remember anything else from this article, just remember that if you only argue the facts that were entered into evidence, everything else should be smooth sailing. Rule 3.4(e) of the Indiana Rules of Professional Conduct states that “A lawyer shall not . . . in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.” Furthermore, in a criminal case, “the prosecutor is required to confine her closing argument to comments based upon the evidence presented in the record.” Brummett v. State, 10 N.E.3d 78, 9 (Ind. Ct. App. 2014). Stated in a slightly different way, “[i]t is misconduct for a prosecutor to request the jury to convict a defendant for any reason other than his guilt.” Ryan v. State, 9 N.E.3d 663, 16 (Ind. 2014).

Applying these standards to recent cases, the court has found the following to be improper:

• Characterizing defense counsel’s argument as “how guilty people walk” or a “trick.” Ryan, 9 N.E.3d at 10.

• Requesting that the jury convict the defendant as part of a “bigger picture” and to send a message that stops other perpetrators of sexual misconduct like teachers, coaches or pastors. Id. at16.

• Suggesting that the defendant and defense counsel conspired to fabricate its defense. Brummett, 10 N.E.3d at 11.

2. Improper advocacy can be deemed unethical.

In Matter of M.A., 2014 Ind. LEXIS 507(Ind. 2014), the respondent was found to have violated Rule 3.4(e) of the Indiana Rules of Professional Conduct when he “made a number of inappropriate remarks during closing argument, including telling the jury that this would be a ‘perfect case for punitive damages’” even though the claim for punitive damages had been withdrawn. Id. at 4. In addition, the respondent improperly alluded to “facts that were not supported by admissible evidence, assert[ed] personal knowledge of facts in issue, and stat[ed] his personal opinion as to the justness of his clients’ cause and the credibility of a witness.” Id. at 4-5. The respondent was found in violation of other Rules of Professional Conduct and was sanctioned with a 60-day suspension.

In addition, some of the criminal cases cited above analyzed the Rules of Professional Conduct in evaluating whether the lawyer’s advocacy had been appropriate. For example, in Ryan, the Court of Appeals, quoting the Preamble to the Indiana Rules of Professional Conduct, held that a prosecutor’s improper comments regarding defense counsel were “inconsistent with the requirement that lawyers ‘demonstrate respect for the legal system and for those who serve it, including . . . other lawyers.” See Preamble [5], Ind. Professional Conduct Rules; Ryan, 9 N.E.3d at 10. In addition, the prosecutor’s comment that the witnesses “do not lie about the Defendant,” constituted improper commentary on “the justness of a cause” and the “credibility of a witness” in violation of Rule 3.4(e). Brummett, 10 N.E.3d at 15.

3. Opposing counsel can help stop the improper advocacy.

Whether the attorney is in a criminal or a civil case, the attorney’s opposing counsel has a role to play in preventing misconduct. For example, opposing counsel should know that he or she can open the door to otherwise improper arguments. In Neville v. State, 976 N.E.2d 1252, 1259-60 (Ind. Ct. App. 2012), a prosecutor made a comment in voir dire that could have been interpreted to suggest that a good judge and good defense attorney meant that the jury should not be concerned about a wrongful conviction.

While the court seemed “troubled” by this comment, it also noted that “[p]rosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor’s response would otherwise be objectionable.” Id. at 1260 quoting Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). Because the prosecutor was responding to defense counsel’s questioning about wrongful convictions, the court deemed that the comments did not rise to the level of fundamental error. Id.

Finally, opposing counsel obviously needs to object to improper comments. While the conviction in Brummett was reversed, the conviction in Ryan was not. Both cases involved similar arguments from the prosecutor. However, because defense counsel did not object, the judge did not stop the improper arguments at either trial and the cases were analyzed under a fundamental error analysis. While it will never be known what would have happened had a timely objection been made, the chances of a fair trial would have increased.•

__________

James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

ADVERTISEMENT